ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Sean C. Lemieux				Mark Small

Indianapolis, Indiana			Indianapolis, Indiana

							Joseph P. Maguire

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

JOHN DOE,					    )

						    )

	Appellant (Plaintiff below), )

						    )

		v.			 	    ) 30S01-9504-CV-420

						    ) in the Supreme Court

METHODIST HOSPITAL, LIZZIE	    )

CAMERON, LOGAN CAMERON and	    ) 30A01-9312-CV-421

CATHY DUNCAN,				    ) in the Court of Appeals

						    )

	Of whom Cathy Duncan	    )

	is Sole Appellee		    )

	(Defendants below).		    )

APPEAL FROM THE HANCOCK SUPERIOR COURT

The Honorable Richard T. Payne, Judge

Cause No. 30D01-9202-CT-67

SHEPARD, Chief Justice.

	Over the last century, courts and commentators have developed

a quadripartite formulation for the tort of invasion of privacy. 

In this case we consider whether one branch of that tort, public

disclosure of private facts, may form the basis of a civil action in Indiana.  On the facts of this case, we decline to recognize

that it may.

	Background

	"John Doe" appeals the trial court's entry of summary judgment

for appellee Cathy Duncan, whom Doe had sued for invasion of

privacy.  In reviewing a grant of summary judgment we construe the

facts and the inferences they support in the light most favorable

to the non-movant, in this case Doe.  Bell v. Northside Finance Corp., 452 N.E.2d 951 (Ind. 1983).  Because he lost below, Doe bears the burden of demonstrating the trial court erred in granting

summary judgment.  Schrader v. Eli Lilly & Co., 639 N.E.2d 258 (Ind. 1994).

	Doe is a letter carrier for the U.S. Postal Service.  In early

1990, he was rushed from his workplace to Methodist Hospital

because of a suspected heart attack.  During the ambulance ride, he

informed the paramedics that he had tested positive for the human

immunodeficiency virus (HIV), and they recorded that information in

his medical records.  Doe had previously disclosed his HIV status

to a small circle of close friends and co-workers, but he had not

shared that information with his co-workers generally.  For several

years rumors had circulated in the workplace, sometimes with a

negative connotation, that Doe was gay.  On that basis alone, some

co-workers had speculated that he was HIV positive.

	While Doe was in the hospital, co-worker Logan Cameron

allegedly checked on Doe's condition by calling his own wife,

Lizzie Cameron,1 who worked at Methodist Hospital.  Doe contends that Lizzie reviewed his confidential medical records, discovered

he was HIV positive, and disclosed that information to her husband

Logan.  Doe further alleges that Logan Cameron related the

information to some of Doe's co-workers, including Duncan.  

	Becky Saunders, who was also a letter carrier, stated that

Duncan approached her and said:  "I heard that [John Doe] has AIDS. 

Is it true?"  (R. at 98.)  According to Saunders, Duncan said that

she received the information either from someone who worked in a

clinic or from someone who knew someone who worked in a clinic.  We

accept, for the purposes of this appeal, Saunders statement that

she was not previously aware of Doe's HIV status.  

	Duncan also approached co-worker Ron Okes in what he

characterized as an attempt to verify the rumor.  Okes was a close

friend of Doe, and Doe had previously told him in confidence that

he was HIV positive.  Okes did not confirm Duncan's gossip.  A few

days later, Duncan approached Okes again.  She told him she had

gone to Doe's significant other,2 who was also a co-worker, and apologized for spreading the rumor.3

	Doe and his significant other apparently complained to postal

supervisors, and the Postal Service seems to have taken responsible

action.  According to Okes' testimony, the supervisors separately

confronted Duncan and Logan Cameron about the incidents, perhaps in

the presence of Doe and his partner.  Duncan left her meeting in

tears, and was ultimately transferred to a different work station.

	Doe sued Duncan for invasion of privacy.4  As damages, he alleged that he suffered "embarrassment, humiliation and mental

distress."  (R. at 19, 20, 21.)  Doe did not allege any physical or

economic injuries, nor did he file a claim of employment

discrimination or harassment under § 504 of the Rehabilitation Act

of 1973, 29 U.S.C. § 794 (1994) (prohibiting Postal Service from

discriminating against qualified individuals with disabilities).5

	Duncan moved for summary judgment, which the trial court

granted.  Doe appealed, and the Court of Appeals affirmed.  Doe v. Methodist Hospital, 639 N.E.2d 683 (Ind. Ct. App. 1994).  We granted Doe's petition for transfer, and now affirm the judgment of

the trial court.

	The Disclosure Sub-Tort

	The invasion of privacy tort had its genesis in an 1890 law

review article by Boston attorney Samuel Warren and his former law

partner--and future Supreme Court Justice--Louis Brandeis.  See generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1891).  An impetus for it seems to have been the press's coverage of Warren's wife's social gatherings

"in highly personal and embarrasing detail."  William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383 (1960).  The reports covering their daughter's wedding were apparently more than the Warrens'

sensibilities could bear.  Id. (the press "had a field day").

	With the assistance of Brandeis, Warren set out to combat what

he viewed as dangerous media excesses.  The authors criticized the

press for "overstepping in every direction the obvious bounds of

propriety and decency."  Warren & Brandeis, supra, at 196.  They were concerned that truthful reporting about "private" affairs was

causing "a lowering of social standards and of morality."  Id.  This agenda percolated with clarity beneath the cool analytical

surface of the article.  A cause of action for invasion of privacy

would chill the press from reporting "unseemly gossip."

	As Professor William Prosser later observed, the article

"[p]iec[ed] together old decisions in which relief had been

afforded on the basis of defamation, or the invasion of some

property right, or a breach of confidence or an implied contract." 

Prosser, supra, at 384 (footnotes omitted).  Warren and Brandeis argued that the old decisions could not satisfactorily be explained

with reference to their stated legal bases.  The authors contended

that the allegedly aberrant decisions should instead be understood

as signaling the emergence of a new, if ill-defined, right to

privacy.  Id.

	Courts did not rush to recognize the new privacy tort.  The

high courts of Michigan and New York expressly rejected it.  See Atkinson v. John E. Doherty & Co., 80 N.W. 285 (Mich 1899); Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y. 1902).  Judge O'Brien of the New York Court of Appeals felt

so strongly about the issue he wrote a law review article defending

the Roberson decision.  See generally Denis O'Brien, The Right of Privacy, 2 Colum. L. Rev. 437 (1902).  A few years later, however, the Georgia Supreme Court recognized the privacy tort.  See Pavesich v. New England Life Ins. Co., 50 S.E. 68 (1905).  With the imprimatur of the first Restatement of Torts in the 1930s, the pace

of recognition accelerated.  See Restatement of Torts § 867 (1939); Prosser, supra, at 386.

	Although Warren and Brandeis had written in terms of a

comprehensive interest in privacy, the far-flung cases they cited never coalesced into a unified tort.  The first Restatement managed

to articulate a two-dimensional interest in "not having [one's]

affairs known to others or [one's] likeness exhibited to the

public."  Restatement of Torts § 867.  By 1960, Professor Prosser

had concluded that invasion of privacy was "not one tort, but a

complex of four."  Prosser, supra, at 389.

	The Second Restatement adopted this view, describing four

distinct injuries:  (1) intrusion upon seclusion, (2) appropriation

of likeness, (3) public disclosure of private facts, and (4) false-

light publicity.  Restatement (Second) of Torts § 652A (1977).  The

Second Restatement also candidly acknowledged that these four

separate wrongs were only tenuously related.  They were united only

in their common focus on some abstract notion of being left alone. 

Id. § 652A cmt b.

	Taken separately, each wrong more closely resembles other

distinct torts, rather than separate branches of a single privacy

tort.  See, e.g., Restatement of Torts § 867 cmt a.  Often the privacy tort seems to function as little more than a "lite" version

of trespass, outrage, or defamation--promising the same great take

with only half the facts.  See, e.g., Lovgren v. Citizens First National Bank, 534 N.E.2d 987, 991 (Ill. 1989) ("It has been said that all defamation cases can be analyzed as false-light cases, but

not all false-light cases are defamation cases.").  Moreover,

recognizing one branch of the privacy tort does not entail

recognizing all four.  See id. at 989 (accepting false light but declining to resolve appellate court disagreement over recognition

of intrusion); Zinda v. Lousiana Pacific Corp., 440 N.W.2d 548, 555 (Wis. 1989) (observing that privacy statute includes intrusion,

appropriation, and disclosure, but not false light).

	The only branch of the privacy tort at issue in this case is

disclosure.  This cause of action has been recognized in most

states, see Diane L. Zimmerman, Requiem for a Heavyweight:  A Farewell to Warren and Brandeis's Privacy Tort, 68 Cornell L. Rev. 291, 365-67 (1983), including each of Indiana's neighbors.  See  Miller v. Motorola, Inc., 560 N.E.2d 900 (Ill. Ct. App. 1990); Brents v. Morgan, 299 S.W. 967 (Ky. 1927); Beaumont v. Brown, 257 N.W.2d 522 (Mich. 1977), overruled in part by Bradley v. Bd. of Educ., 565 N.W.2d 650 (Mich. 1997) (Freedom of Information Act supercedes state employee's privacy right); Housh v. Peth, 133 N.E.2d 340 (Ohio 1956).  On the other hand, a few states have

refused to recognize disclosure.  See Hall v. Post, 372 S.E.2d 711 (N.C. 1988); Freihofer v. Hearst Corp., 480 N.E.2d 349 (N.Y. 1985); Stubbs v. North Mem. Med. Ctr., 448 N.W.2d 78 (Minn. Ct. App. 1989).  Even where the cause of action has been recognized, the

success rate of plaintiffs has been extremely low, perhaps because

of its stringent elements.  Zimmerman, supra, at 293 & n.5 (finding only 18 state cases in which plaintiff's claim succeeded or

survived a motion for summary judgment or dismissal).

	While we have recited the Second Restatement's four-part

definition of the privacy tort, Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991), we have never directly confronted disclosure as an

actionable invasion of privacy.  In State ex rel. Mavity v. Tyndall, 224 Ind. 364, 66 N.E.2d 755 (1946), we generally recognized breach of privacy as tortious.  That decision, however,

predated the Second Restatement and thus did not consider the

different forms of invasion that courts have since delineated.

	We think Mavity need not be read as a recognition of anything more than false light invasion of privacy.  The plaintiff had been

arrested and charged with gaming misdemeanors.  The Indianapolis

police took a "mug shot" of him, took his fingerprints, obtained a

copy of his signature, and compiled a personal description of him. 

He was soon released after a hearing, and the charges were dropped. 

Mavity then sued, on invasion of privacy grounds, seeking the

return or destruction of the items the police had collected.  We

held that retention of the materials could not invade his privacy

as long as they were "filed away from public gaze."  Id. at 382, 66 N.E.2d at 762.  We did sanction enjoining the police department

from placing Mavity's photograph in a "rogues' gallery," because

such a display would imply that he was guilty of some offense and

thus place him in a false light before the public.  Id. at 381, 66 N.E.2d at 762.

	Relying on Mavity, the Court of Appeals two years later acknowledged the theory of the disclosure sub-tort in Patton v. Jacobs, 118 Ind. App. 358, 364, 78 N.E.2d 789, 791 (1948), but held that it did not prevent a creditor from disclosing a debtor's financial status to the debtor's employer in an effort to collect

on the debt from the debtor's wages. A year later, citing Mavity and Patton, the Court of Appeals defined the tort of invasion of privacy as 

"The unwarranted appropriation or exploitation of one's

personality, the publicizing of one's private affairs

with which the public has no legitimate concern, or the

wrongful intrusion into one's private activities, in such

a manner as to outrage or cause mental suffering, shame,

or humiliation to a person of ordinary sensibilit[ies]."

Continental Optical Co. v. Reed, 119 Ind. App. 643, 648, 86 N.E.2d 306, 308 (1949) (quoting Annotation, Right of Privacy, 138, A.L.R. 22, 25 (1942)).  

	Consistent with the national trend, defendants in three of the

four reported Indiana decisions involving disclosure since Patton were exonerated.  See Near East Side Community Org. v. Hair, 555 N.E.2d 1324 (Ind. Ct. App. 1990); Indiana Nat'l Bank v. Chapman, 482 N.E.2d 474 (Ind. Ct. App. 1985); Kaletha v. Bortz Elevator Co. Inc., 178 Ind. App. 654, 383 N.E.2d 1071 (1978).  In the fourth case the court merely held that the plaintiff's claim against one

of two defendants survived a motion for summary judgment.  Watters v. Dinn, 633 N.E.2d 280 (Ind. Ct. App. 1994), trans. denied.

	In this case, Doe would have us impose upon Hoosiers a legal

duty to refrain from publicly disclosing the private affairs of

others.  We can identify two main interests that such a duty would

protect.  First, a person has an interest in reputation, in being able to interact effectively with other people.  Second, a person

has an interest in mental well-being, in avoiding the emotional

distress that could result from disclosures.  Each of these

interests must be balanced against competing public and private

interests.

A.  Reputation

	Under one view, the primary harm that can result from a public

disclosure of private facts is an injury to a person's reputation. 

The Restatement explains that "[e]very individual has some phases

of his life and his activities and some facts about himself that he

does not expose to the public eye."  Restatement (Second) of Torts

§ 652D cmt. b (1977).  When someone else exposes those facts, the

Restatement recognizes injury to reputation as the main compensable

harm that can result.  See id. § 652H cmt. a.  This interest is important, but the Indiana Bill of Rights weighs strongly against

recognizing a civil action to protect it.

	1.  The Interest in Reputation.  Some commentators have derided the reputational interest as an interest in cultivating a

undeserved reputation.  Judge Posner, for example, has declared

that "we have no right, by controlling the information that is

known about us to manipulate the opinions that other people hold of

us."  Richard A. Posner, The Right of Privacy, 12 Ga. L. Rev. 393, 408 (1978).  In lauding gossip, another commentator has asserted

that "the cohesiveness and durability of any social organization

depends [sic] upon the ability of its members to evaluate each other accurately and to use their observations to exert, modify, or

develop social controls."  Zimmerman, supra, at 327.

	Still, the reputational interest protected by disclosure

actions should not be lightly dismissed.  Truthful disclosures can

be socially disruptive and personally dangerous.  In many real-life

situations, the maintenance of a social organization--such as a

workplace--sometimes depends upon the ability of individuals to

censor themselves and minimize internecine strife.  

	Moreover, while truthful disclosures can shatter undeserved

reputations, they can also incite undeserved abuse.  Defamation law

has traditionally addressed similar injuries to reputation. 

According to Blackstone, for example, libel and slander actions

protected individuals from social exclusion or impairment of

livelihood.  See 3 William Blackstone, Commentaries *123.  This Court recognized 150 years ago that libelous defamation injured a

person's reputation and thereby exposed him "to public hatred,

contempt, or ridicule."  Armentrout v. Moranda, 8 Blackf. 426, 427 (Ind. 1847).6  Today, the Second Restatement defines a defamatory communication as one that "tends so to harm the reputation of

another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." 

Restatement (Second) of Torts § 559 (1977) (emphasis added). 

Unjustified ostracism is a central concern of libel and slander

law.

	Defamation rules apply, however, only to statements that are

false as well as defamatory.  Id. § 558.  The common law refused to recognize that any unjustified harm could flow from derogatory

statements that were true.  See 3 Blackstone, supra, at *125;  Francis Ludlow Holt, The Law of Libel 280 (1818) (observing that in

truthful defamation "there can be no . . . injurious damage," for

"[t]he plaintiff has previously extinguished his own character"). 

The Restatement adheres to that policy, protecting truthful

defamation from liability.  Restatement (Second) of Torts § 581A. 

From the beginning, this Court has recognized truth as a complete

defense in civil actions for libel or slander.  See, e.g., Henson v. Veatch, 1 Blackf. 369, 372 n.2 (Ind. 1825).  Dissemination of truthful but defamatory private facts has apparently never been

civilly actionable as libel or slander in Indiana.

	To the extent the disclosure sub-tort protects an interest in

reputation, it fills this supposed gap, as truth is not a defense

in a disclosure action.  Indeed, one commentator largely attributes

the emergence of the sub-tort to "the general common law defense of

truth in civil defamation actions and the concomitant

unavailability of a remedy thereunder for highly embarrassing

truthful disclosures."  David A. Elder, The Law of Privacy, § 3.1, at 149 (1991).  In other words, disclosure sometimes serves as an

alternative action for truthful defamation.

	2.  Truthful Defamation.	 That alternative feature of the disclosure sub-tort, however, brings it into potential conflict

with the libel provision of the Indiana Bill of Rights:  "In all

prosecutions for libel, the truth of the matters alleged to be

libelous may be given in justification."  Ind. Const. art. I, § 10. 

The text of Section 10 is not lacking in ambiguity.  Nevertheless,

our review of its history suggests a very strong policy against any

civil liability based on truthful defamation.

	Section 10 has a somewhat complicated etymology.  It derived

from a similar provision in the 1816 Constitution, which in turn

had been borrowed from the Pennsylvania Constitution of 1790.  The

language was strongly influenced by the development of criminal

libel law in Great Britain.  That development was dominated by two

related issues:  (1) whether truth should be a defense in criminal

libel and (2) whether the judge or the jury should determine

whether a defendant's publication was unlawful.  The controversy

culminated in Fox's Libel Act in 1792, which inspired American

constitutional provisions.

	With the rise of the enlightenment in the sixteenth and

seventeenth centuries, the English government increasingly used

criminal libel law to suppress dissent.  See John Kelly, Criminal Libel and Free Speech, 6 Kan. L. Rev. 295, 300-03 (1958); 2 James Fitzjames Stephen, A History of the Criminal Law of England 300-04,

(1883).  On the theory that truthful statements were at least as

dangerous to public peace as false ones, the Star Chamber, and

later the common law courts, abrogated the defense of truth in

criminal libel.7  Roy Robert Ray, Truth:  A Defense to Libel, 16 Minn. L. Rev. 43, 44-46 (1931-32).  Indeed, Lord Mansfield is

usually credited with coining the infamous maxim, "The greater the

truth, the greater the libel."  Id. at 43 n.1; John Townshend, Slander and Libel § 211, at 306 n.4 (4th ed. 1890).

	In the seventeenth and eighteenth centuries, common law courts

also restricted the discretion of juries in criminal libel cases. 

Judges assumed the right to decide, as a matter of law, whether a

defendant's publication was unlawfully defamatory or seditious. 

See Kelly, supra, at 302-03.  The jury was responsible for deciding only discrete factual matters, such as whether it was the defendant

who had actually published the alleged libel.  See 2 Stephen, supra, at 303-04, 315.  The jury was not supposed to return a general verdict of guilt.  See id. at 325.  This division of responsibilities obviously granted judges tremendous power over

criminal libel defendants.

	Opponents of government suppression attempted to use juries to

derail criminal libel prosecutions.  These advocates convinced several juries in high-profile cases to return general verdicts of

not guilty or verdicts of "guilty of publication only," which

implied overall innocence.  See 2 Stephen, supra, at 323, 325, 330.  When these verdicts were challenged, the advocates attempted to

transfer the question of a publication's libelous character from

judge to jury by contending that a defendant could not be convicted

without a jury finding of specific intent.  See Kelly, supra, at 304.  When Lord Mansfield rejected this argument and asserted that

juries had no right to return a general verdict, Rex v. Woodfall, 20 State Tr. 895, 912-13 (1770), Parliament harshly criticized the

result.  2 Stephen, supra, at 325.

	When Lord Mansfield reaffirmed this view in another high-

profile decision, The Dean of Asaph's Case, 21 How. St. Tr. 847, 1033-40 (K.B. 1783), Parliament eventually responded with Fox's

Libel Act, 32 Geo. 3, ch. 60 (1792).  2 Stephen, supra at 343.  Although the Act is sometimes mistakenly cited as re-establishing

the truth defense in criminal libel, Ray, supra, at 46, it actually addressed the role of juries.  The Act authorized juries in

criminal libel trials to return a general verdict of guilt, but it

reserved the right of a judge to instruct the jury "in like manner

as in other criminal cases."  2 Stephen, supra, at 344-45.  Although Parliament did not officially restore the truth defense in

criminal libel until 1843, Lord Campbell's Act, 6 & 7 Vic., ch. 96

(1843), the ability of a jury to acquit a defendant no doubt

permitted an unofficial truth defense.

	Fox's Libel Act left an ambiguous legacy.  Because Lord

Mansfield and other judges had considered the defamatory character

of a publication to be a question of law for the court, this

statute expanding the authority of juries was said by some to have

recognized the right of juries in criminal libel cases to decide

questions of law as well as fact.  Furthermore, the Act's

suggestion that this power was like that "in all criminal cases"

was taken as evidence that juries generally held the power to

decide questions of law in criminal cases.  See Mark DeWolfe Howe, Juries as Judges in Criminal Law, 52 Harv. L. Rev. 582, 585-86 (1939).  Juries exercised that power in some of the American

colonies, Note, The Changing Role of the Jury in the Nineteenth Century, 74 Yale L. J. 170, 173-74 (1964), and the policy reached an apex during the early nineteenth century.  See id. at 174 (citing Howe, supra at 583-84).  Fox's Libel Act came to symbolize the power of the jury to decide questions of law.8

	This history guided the drafters of Indiana's 1816

Constitution.  It contained a forerunner to our present Section 10,

as follows:

	In prosecutions for the publication of papers

investigating the official conduct of officers, or men in

a public capacity, or where the matter published is

proper for the public information, the truth thereof may be given in evidence; and in all indictments for libels, the Jury shall have a right to determine the law and the facts, under the direction of the Court, as in other cases.

Ind. Const. art. I, § 10 (1816) (emphasis added).  This wording was

taken almost verbatim from the 1790 Pennsylvania Constitution.  Pa.

Const. art. IX, § 7 (1790).9

	The influence of the British experience is manifest.  These

provisions addressed both of the contemporary controversies in

criminal libel law.  In Britain, criminal libel became "almost

exclusively" an instrument for the suppression of political

dissent.  Kelly, supra, at 303.  Perhaps the fear of a similar use of the law by elites in early Indiana led the framers of the 1816

Constitution to guarantee the availability of a truth defense where

political speech was concerned.  See C.A. Byers, Growth of the Constitution of Indiana, 6 The Indianian 276, 279-80 (1990) (contrasting populist principles that motivated framers of 1816

with the Federalist principles that motivated authors of the

Northwest Ordinance).

	In another reaction to the British experience, the framers

gave juries in criminal libel cases "the right to determine the law

and the facts."  The 1816 provision was also phrased in such a way

that, as with Fox's Libel Act, it could be read to imply that

juries were generally empowered to decide questions of law in all

criminal cases.  Indeed, this Court specifically rejected the contention that Section 10 implied such a general power.  Townsend v. State, 2 Blackf. 151, 157 (Ind. 1828).  Eight years later, however, the Court tersely held that a trial judge should have

instructed the jury in a larceny case that it was the judge of the

law as well as the facts.  Warren v. State, 4 Blackf. 150, 150-51 (Ind. 1836).10 

	A key ambiguity is whether the framers of the 1816 provision 

intended to constitutionalize the truth defense in civil as well as criminal actions for libel.  The provision made truth a defense in

"prosecutions" for "publication of papers" involving specified

political matters:  essentially seditious libel.  The jury clause,

however, applied to "all indictments for libels."  There are at

least two ways to interpret the differing language.  First, the

truth clause might have applied to both civil and criminal actions,

while the jury clause applied only to criminal actions.  Second,

the truth clause might have applied to only criminal actions based

on political libel, while the jury clause extended to all criminal

libel, whether seditious or personal.

	The second view seems more plausible for several reasons. 

First, the truth defense in civil actions for libel seems to have been well established at common law by the early nineteenth

century.  See Ray, supra, at 50; Thomas Starkie, A Treatise on the law of Slander and Libel *235 n.1 (John L. Wendell ed. 1858). 

Second, the 1816 provision applied only to libel, not to slander,

which was a civil action with no criminal counterpart.  See 4 Blackstone, supra, at *149-52.11  Third, an 1803 opinion of the Pennsylvania Supreme Court interpreting the parent provision of old

§ 10 suggests that the provision did not affect civil actions for

libel, where truth was already established as a valid defense in

all cases.  See Runkle v. Meyer, 3 Yeates 518, 520 (Pa. 1803).

	The 1851 truth-in-libel provision seems to have been based

largely on the 1816 provision.  Construing this provision is 

difficult, however, because it existed in a contemporary vacuum. 

As noted above, this Court early on recognized the truth defense in

civil actions for libel and slander, and the legislature codified

that rule in 1852, 2 Ind. Rev. Stat. pt. 2, ch. 1, § 87 (1852).

	Furthermore, at least by 1843 the legislature had abolished

common law crimes, see Ind. Rev. Stat. ch. 54, § 84 (1843); Beal v. State, 15 Ind. 378, 379 (1860).  Moreover, while Indiana statutes criminalized malicious prosecution, Ind. Rev. Stat. ch. 53, § 77, at 976 (1843), and barratry, id. § 78, at 976 (1843), no criminal statute prohibited libel or slander.  The revision of Indiana

statutes in 1852 did not alter this state of affairs.  See 1 Ind. Rev. Stat. ch. 61, § 2, at 351 (1852) (abolishing common law

crimes); 2 Ind. Rev. Stat. pt. 3, ch. 7, §§ 18, 19, at 463-64

(1852) (proscribing malicious prosecution and barratry).

	Nevertheless, whether the framers of the 1851 Constitution

intended the new Section 10 to guarantee a truth defense in civil

as well as criminal actions for libel is open to doubt.  The

initial version of the 1851 provision, drafted by Robert Dale

Owen's committee, appears as an edited version of the 1816

provision.  It deleted the reference to political libel from the

truth clause and made both clauses applicable to all libel

"prosecutions":

	In all prosecutions for libel, the truth of the matter

alleged to be libellous may be given in [sic]

justification, and the jury shall have the right to

determine the law and the facts.

Journal of the Convention of the People of the State of Indiana to Amend the Constitution, 187 (1851) [hereinafter Journal].  This proposed wording bolsters our view that the 1816 truth clause

applied only to criminal sedition, for Owen's edited version of it

was obviously limited to criminal libel.  This conclusion follows

from the jury clause.  There was no serious contention in the

nineteenth century that juries should be empowered to determine the

law in civil cases.  Thus, the word "prosecutions" in the Owen

draft, and probably the 1816 provision, likely referred only to

criminal prosecutions.

	The Owen draft of Section 10, however, encountered opposition

in the convention debates and was substantively amended.  Delegate

Henry F. Thornton recounted this Court's decisions in Townsend and Warren on the role of the jury in criminal cases, and expressed his concern that since juries could not determine the law in civil

cases, Owen's proposed guarantee of a truth defense would be read

to apply only to criminal cases.  2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution

of the State of Indiana 1850, 1384 (1850) [hereinafter Debates].  Thornton claimed to have "no doubt that the draftsman of this

section, had it in view to make it cover civil as well as criminal cases."  Id.  Whether disingenuous rhetoric or honest mistake, Thornton was probably wrong about the scope of Owen's proposed

language.12  Nevertheless, he offered an amendment to ensure that § 10 guaranteed a truth defense in civil actions for libel, and the

convention adopted the amendment.  Journal at 579.13

	When this language emerged from Owen's Committee on Revision,

however, the amended Section 10 had become two separate sections of

the Bill of Rights.  One section guaranteed the truth defense in

"all prosecutions for libel," and the other granted juries the

right to determine the law in all criminal cases, not just in libel

cases.  See id. at 872.  Given the convention's approval of Thornton's amendment, the Owen revision is a mystery.  At the

least, one can say that the truth-in-libel provision of the 1851

Indiana Constitution commands real caution about proposals to

recognize a civil cause of action for libel that impose liability

for truthful  statements.

B.  Emotional Health

	There is a second interest that the public disclosure sub-tort

protects, an interest in emotional health.  Doe alleged that he

suffered "embarrassment, humiliation, and mental distress" as a

result of the disclosure of his HIV status.  Warren and Brandeis,

in fact, focused most of their attention in their article on these injuries, expressing a concern for "peace of mind" and the

embittering of life.  Warren & Brandeis, supra, at 200, 204.

	Indiana law, however, already provides protection for

emotional injuries with a civil action for intentional infliction

of emotional distress, also known as "outrage."  Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991).  And Dearborn Fabricating & Eng'g Corp., Inc. v. Wickham, 551 N.E.2d 1135 (Ind. 1990), teaches that we should consider whether emotional injuries resulting from

public disclosures of private facts are sufficiently different from

all other emotional injuries to justify special protection.

	The issue is more than semantic.  The tort of outrage contains

more stringent proof requirements than does the disclosure sub-

tort.  To establish liability for outrage, a plaintiff must prove

that a defendant (1) engaged in "extreme and outrageous" conduct

that (2) intentionally or recklessly (3) caused (4) severe

emotional distress.  Restatement (Second) of Torts § 46 (1965).14

	In contrast, under the Second Restatement a plaintiff does not

have to prove any mental element in a public disclosure action.  He

needs only to show that the disclosed matter was private and not of

legitimate concern to the public, and that the disclosure would be

highly offensive to a reasonable person.  Restatement (Second) of Torts § 652D (1977).  In this sense, disclosure is a sort of strict

liability version of outrage.  It is outrage "lite."

	At least one court has required plaintiffs in disclosure

actions to establish the elements of outrage as well as disclosure. 

Writing for the Supreme Court of Oregon, Justice Hans Linde

reasoned that disclosure should not be treated differently from

other causes of action based on emotional injuries.  See Anderson v. Fisher Broadcasting Cos., 712 P.2d 803, 807-14 (Or. 1986).  Under the Oregon rule, a plaintiff has to prove that a defendant's

disclosure was "designed to cause severe mental or emotional

distress."  Id. at 807; cf. Taylor v. KTVB, Inc., 525 P.2d 984 (Idaho 1974) (allowing disclosure action against media where matter

was of legitimate public interest if defendant acted with malice). 

The Arizona Court of Appeals also adopted this standard in Rutledge v. Phoenix Newspapers, Inc., 715 P.2d 1243 (Ariz. Ct. App. 1986).  The Arizona Supreme Court subsequently overruled this more

stringent standard, adopting the Second Restatement.  Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781 (Ariz. 1989).  

	Justice Linde seems right.  Our opinion in Collins v. Day, 644 N.E.2d 72 (Ind. 1994), suggests that in determining whether unequal

treatment is justified in a given situation we should consider

whether there are any "inherent differences" related to the subject

matter at issue.  644 N.E.2Id. at 78.  In this context, we would ask whether the two classes of emotional injuries exhibit any inherent

difference with respect to either the ability of a plaintiff to prove the mode of their infliction or the justness of allowing a

recovery.  On this view, we cannot see any relevant difference

between emotional injuries resulting from public disclosures of

private facts and those arising from other sources.

	Even under a broader analysis, we do not discern anything

special about disclosure injuries.  Perhaps Victorian sensibilities

once provided a sound basis of distinction, but our more open and

tolerant society has largely outgrown such a justification.  In our

"been there, done that" age of talk shows, tabloids, and twelve-

step programs, public disclosures of private facts are far less

likely to cause shock, offense, or emotional distress than at the

time Warren and Brandeis wrote their famous article.

	II.  Doe's Disclosure Claim

	With these policies in mind, we turn to Doe's request that we

recognize the sub-tort of disclosure, examining the facts and

arguments advanced.

	According to the Second Restatement, a person is subject to

liability for public disclosure of private facts if the person (1)

gives "publicity", (2) to a matter that	(a) concerns the "private life" of another; (b) would be "highly offensive" to a reasonable

person; and (c) is not of legitimate public concern.  Restatement

(Second) of Torts § 652D (1977).  On appeal, Duncan argues that Doe's claim must fail with regard to Okes because of the "private

life" element and with regard to Saunders because of the

"publicity" element.  We agree with both contentions.15

	A key issue contested in the briefs is whether "publicity"

requires disclosure to the general public or whether more isolated

disclosures are also actionable.  According to the Second

Restatement, "publicity" in disclosure law is not the same as

"publication" in defamation law.  Restatement (Second) of Torts §

652D cmt. a.  "Publication" can consist of communication to just

one individual.  Id. § 577(1).  In contrast, "publicity" requires communication of the information "to the public at large, or to so

many persons that the matter must be regarded as substantially

certain to become one of public knowledge."  Id. cmt. a.  A paradigmatic example is a creditor who posts in a shop window a

sign declaring that a named individual owes him a certain sum of

money, as in Brents v. Morgan, 299 S.W. 967 (Ky. 1927). 

	The Restatement explicitly observes that communication "to a

single person or even to a small group of persons" is not

actionable.  Restatement (Second) of Torts § 652D cmt. a; see also Elder, supra § 3:3, at 155-57 nn.48-71 (1991 & Supp. 1997)

(collecting cases).  Most courts have followed this definition of

"publicity," see id. § 3:3, at 154, ignoring the Restatement's suggestion that courts could extend coverage "to a simple disclosure," Restatement (Second) of Torts § 652D cmt. a.  See, e.g., Kaletha v. Bortz Elevator Co., Inc., 178 Ind. App. 654, 383 N.E.2d 1071, 1075 (1978) (rejecting privacy claim in part because

disclosure was not "directed toward the entire world").  Obviously,

Duncan's two disclosures do not satisfy a requirement of

dissemination to the general public.

	On the other hand, a few courts, including Indiana's

neighbors, have adopted a looser definition of "publicity."  In the

seminal Beaumont case, the Supreme Court of Michigan held that even if a disclosure were not made to the general public, it could still

be actionable if made to a "particular public" with a special

relationship to the plaintiff, such as co-workers, family members,

or neighbors.  Id. at 531.  The court sought to identify a nexus between the information disclosed and the relationship between the

plaintiff and the class to whom the disclosure was made.  The

question was whether a particular disclosure would be embarrassing

given the plaintiff's relationship with the "particular public" at

issue.  In the most liberal application of Beaumont, the D.C. Circuit, applying a Kentucky privacy statute, held that disclosure

of a person's infidelity to that person's spouse was actionable

given the obvious detrimental impact that particular information

could have on the intimate marital relationship.  McSurely v. McClellan, 753 F.2d 88, 112-13 (D.C. Cir.), cert. denied, 474 U.S. 1005 (1985).  Illinois Appellate Courts have followed Beaumont.  See, e.g., Miller v. Motorola, Inc., 560 N.E.2d 900 (Ill. App. Ct. 1990).

	Even under the more flexible Beaumont standard, however, we conclude that Doe could not maintain a disclosure action against

Duncan.  Indeed, Doe could not sue Duncan based on her

communications with Okes under any definition of "publicity"

because Doe had already disclosed his HIV status to Okes. 

According to the Second Restatement, "[t]here is no liability when

the defendant merely gives further publicity to information about

the plaintiff that is already public."  Restatement (Second) of

Torts § 652D cmt. b; see also Elder, supra, § 3:4 at 164-73 nn.45- 15 (collecting cases); Near East Side Community Org. v. Hair, 555 N.E.2d 1324, 1335 (Ind. Ct. App. 1990) (holding disclosure claim

not stated where information was matter of public record).  Doe

could hardly have been embarrassed and humiliated by Duncan's

attempted disclosure to Okes of information Doe had already

disclosed to him.16  

	In addition, Duncan's disclosure to Saunders, without more,

cannot form the basis of a disclosure action even under the

Beaumont doctrine.  To designate a person or a group of persons as a "particular public," that person or persons must have a special

relationship with the plaintiff such that the disclosure would be

particularly damaging.  Here, Doe had withheld his HIV status from

a number of employees at the large postal branch where he worked. 

Of these uninformed co-workers, the evidence does not support an

inference that Duncan told anyone but Saunders, another letter carrier.  Thus, Beaumont would be applicable only if there were some special relationship between Doe and Saunders that justified

treating her alone as a "particular public."  Unlike the marital

relationship in McSurely, however, nothing in the record indicates that knowledge of Doe's HIV status would be more relevant or

damaging to his relationship with Saunders than with any of the

other letter carriers.  There is simply no basis for narrowing the

definition of "particular public" from the set of all Doe's letter-

carrier colleagues to just Saunders.  

	Conclusion

	Indiana recognizes a number of the claims described

generically as invasions of privacy.  The version of these torts

involving disclosure of truthful but private facts encounters a

considerable obstacle in the truth-in-defense provisions of the

Indiana Constitution.  The facts and the complaint in this

particular case do not persuade us to endorse the sub-tort of

disclosure.

	We affirm the trial court.

Selby, J., concurs.

Boehm, J., concurs in result without separate opinion.

Dickson, J., concurs in result with separate opinion, in which    

Sullivan, J., concurs.

ATTORNEY FOR APPELLANT			ATTORNEY FOR APPELLEE

Sean C. Lemieux					Mark Small

Indianapolis, Indiana 					BRADBURN SWETNAM & SMALL

							Indianapolis, Indiana

							Joseph P. Maguire

							Indianapolis, Indiana

In The

INDIANA SUPREME COURT

JOHN DOE,						)	

		Appellant (Plaintiff Below)	)	

							)	

		v.					)	30S01-9504-CV-420	 							)

							)

METHODIST HOSPITAL, LIZZIE		)	

CAMERON, LOGAN CAMERON, and		)	

CATHY DUNCAN,				)

		Of which Cathy Duncan is 	)

		Sole Appellee (Defendant Below)	)

                          ________________________________________________  

APPEAL FROM HANCOCK SUPERIOR COURT

The Honorable Richard T. Payne

Cause No. 30D01-9202-CT-0067

                        _________________________________________________

On Petition To Transfer

DICKSON, J., concurring in result.

	I agree with the plurality’s conclusion that, applying Restatement of Torts (Second) § 652D (1977), and construing the facts favorable to Doe, summary judgment was appropriate against Doe’s claim for invasion of privacy for the disclosure of private facts, due to the failure to show the requisite “publicity.”   However, I believe that the

plurality opinion is mistaken in its discourse questioning the cognizability of this tort

under Indiana law.  I base this disagreement upon four grounds: (1) the issue was not

raised by the parties; (2) the tort of public disclosure of private facts is clearly established

in Indiana jurisprudence; (3) the provisions of the Indiana Constitution do not undermine,

but rather support, the right to a remedy for this form of invasion of privacy; and (4) our

common law recognizing this tort reflects sound public policy. 

	With its discussion regarding the general cognizability of an action for public

disclosure of private facts, the plurality ventures into an issue not presented by the

parties.  The defendant asserts on appeal and transfer only that there was insufficient

“publicity” in the present case to constitute the invasion of privacy disclosure subtort. 

She does not question whether the tort is cognizable in Indiana.  To the contrary, she

expressly acknowledges that it is.  Brief of Appellee at 11;  Appellee’s Brief in

Opposition to Petition to Transfer at 8.  It would seem preferable for this Court to address

the issue only if raised and briefed by the parties.  

	Portraying it as an unresolved, new issue of law, the plurality casts the question as

whether the tort of public disclosure of private facts “may form the basis of a civil action

in Indiana,” slip op. at 2, and asserts that the plaintiff  “would have us impose upon

Hoosiers a legal duty to refrain from publicly disclosing the private affairs of others.”

Slip op. at 10.  I disagree with this characterization.  For almost half a century, Indiana courts have clearly recognized the common law tort of invasion of privacy, including the

unwarranted public disclosure of private matters. 

	In 1949, the Court of Appeals approved the following definition of the tort of

invasion of privacy:

	The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or

cause mental suffering, shame, or humiliation to a person of ordinary sensibility.

Continental Optical Co. v. Reed, 119 Ind.App. 643, 648, 86 N.E.2d 306, 308 (1949), trans. denied.  

	In Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991), this Court stated, “The tort of invasion of privacy encompasses four separate forms; viz, appropriation, intrusion, public disclosure of private facts, and false light in the public eye.”  Id. at 31 (emphasis supplied).  A claim of invasion of privacy for public disclosure of private facts was

recently permitted to proceed to trial, reversing a summary judgment, in Watters v. Dinn, 633 N.E.2d 280 (Ind.Ct.App. 1994), trans. denied, wherein the court stated:

		Based upon our review of prior Indiana decisions and other authorities,

three essential elements of invasion of privacy by public disclosure of private facts

emerge: (1) information is divulged to one who had no legitimate interest in the

information; (2) in a manner that was coercive and oppressive; and (3) which

would be highly offensive and objectionable to a reasonable person of ordinary

sensibilities.

Id. at 290.  

	Numerous other decisions have acknowledged the availability of the public

disclosure tort.  See, e.g., Ellis v. Luxbury Hotels, Inc., 666 N.E.2d 1262, 1267 (Ind.Ct.App. 1996), trans. pending; Terrell v. Rowsey, 647 N.E.2d 662, 667 (Ind.Ct.App. 1995), trans. denied; Near East Side Community Org. v. Hair, 555 N.E.2d 1324, 1334-35 (Ind.Ct.App. 1990).  The availability of an action for this tort was also recognized in

Indiana Nat’l Bank v. Chapman, 482 N.E.2d 474, 479 (Ind.Ct.App. 1985), but the court found the evidence wanting, stating, “To reiterate, the Bank’s communication was in

answer to a legitimate investigation by law enforcement and was not a ‘publicizing of

one’s private affairs with which the public has no legitimate concern . . . .” Id. (citation omitted).  Similarly, in Short v. Haywood Printing Co., Inc., 667 N.E.2d 209 (Ind.Ct.App. 1996), trans. denied, the court recognized that a plaintiff could prevail in proving the elements of disclosure of private information as an invasion of privacy, but found that the

plaintiff failed to assert facts showing that any private information was divulged.  Id. at 213-214.  The public disclosure tort was extensively analyzed, particularly as to its

“legitimate public interest element,” in Nobles v. Cartwright, 659 N.E.2d 1064, 1074-77 (Ind.Ct.App. 1995), which unequivocally declared, “Indiana recognizes the tort of public

disclosure of private facts.”  Id. at 1073. 

	The tort of invasion of privacy by the public disclosure of private facts is clearly

established in Indiana jurisprudence.  I believe that it is a mistake to view the existence of

this tort as a new question of law for this Court. 

	I also disagree with the plurality’s conclusion that the Indiana Constitution may 

present a considerable obstacle to the tort of public disclosure of truthful, private facts.  To the contrary, our constitution provides a strong basis for continuing to recognize this

tort.  

	As noted by the plurality, a primary harm that can result from a public disclosure

of private facts is an injury to a person’s reputation.  The Indiana Constitution provides

express recognition of an individual’s interest in reputation and accords it specific

protection.  Bals v. Verduzco, 600 N.E.2d 1353, 1355 (Ind. 1992).  It expresses distinct protection for personal reputation: “[E]very person, for injury done to him in his person,

property, or reputation, shall have remedy by due course of law.”  Ind. Const. art. 1, § 12 (emphasis added).17  Furthermore, the provision protecting the “"right to speak, write, or print, freely, on any subject whatever” is expressly qualified by the limitation “but for the abuse of

that right, every person shall be responsible.” Ind. Const. art. 1, § 9.  While the framers were concerned that the defense of truth be permitted in prosecutions for libel, e.g., defamatory falsehoods, it does not follow that they would have intended to prohibit accountability for harm resulting from the unwarranted public disclosure of private facts, albeit truthful disclosures.

	Suggesting that Collins v. Day, 644 N.E.2d 72 (Ind. 1994), applies, the plurality does not discern any relevant differences between emotional injuries resulting from public disclosures of

private facts and those arising from other sources.  However, this analysis fails to include

consideration of the injury to one’s reputation interest which accompanies the public disclosure

tort.  This harm to reputation component provides the inherent difference between the two classes

of emotional injuries.  

	Contrary to the implication presented by the plurality, the Indiana Constitution does not

appear to create any impediment to the cognizability of the common law tort of invasion of

privacy by public disclosure of private facts.  

	I read the plurality opinion as inviting retreat from the common law recognition of the tort

of invasion of privacy, particularly as to the public disclosure of private facts.  As noted above,

the availability of this theory of tort liability has been repeatedly acknowledged in numerous

Indiana cases for almost fifty years.  With our ever-increasing population and the growing

technological opportunities for invasive scrutiny into others' lives, the compilation of private data,

and the disclosure of purely personal matters, this common law tort grows in importance as a

valuable source of deterrence and accountability. 

 	Noting the prevalence of talk shows and tabloids, the plurality opines that in today’s society, public disclosures of private facts are less likely to cause shock, offense, or emotional

distress than in previous times.  Despite the ebb and flow of cultural sensibilities, however, it

seems unwise to base Indiana's common law jurisprudence on the common denominator of tabloid

and talk show sensationalism and the related absence of traditional respect for privacy and

reputation that often characterize these phenomena. The mere fact that some small segments of

society might choose to publicly disclose intimate personal facts regarding themselves or others

does not establish that this conduct is necessarily reasonable, appropriate, and generally expected

behavior.  Such concerns, in my view, do not justify the abrogation of the tort of public disclosure

of private facts.

	In the present case, the Court of Appeals noted that Indiana has long recognized the tort

of invasion of privacy, including the unwarranted publicizing of another's private affairs, and it

noted that this case presented a new question only as to what constitutes the element of  “publicity” for this tort.  It determined that the facts of this case did not establish “publicity.”  This

likewise appears to be the actual holding of the plurality opinion of this Court.  I believe that

transfer should have been denied or the decision of  Court of Appeals summarily affirmed.

	SULLIVAN, J., concurs.